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EMERGENCY APPEALS: A HOW-TO GUIDE

(Posted October 15, 2018) I’ll confess that I’ve tended to take a lighthearted view of what I’ve described as “omigod appeals,” where a party just has to have immediate review of a trial court’s ruling. I’ve given the example of, “You’re litigating over an ice cream truck, and it’s 97 degrees outside.” I never really gave much thought to when a real need for such an appeal might arise, or how I would go about pursuing one.

All that changed recently when I was asked to speak at an upcoming conference. My topic is how to appeal in denial-of-care cases. Yet another confession: My immediate reaction to that request was, “What’s a denial-of-care case?” I really have lived a sheltered life.

I soon found out that these cases are nothing to take lightly. They refer to the circumstance where a hospital denies medical care needed to preserve someone’s life. There may be squabbling family members, and maybe even a do-not-resuscitate provision in an advance medical directive. In these cases, if a circuit court issues an order allowing or directing the hospital to deny care, and a family member wants to appeal, the normal appellate process is out of the question. These days, it takes well over a year to get from circuit-court judgment to Supreme Court opinion, and most patients in that circumstance don’t have anywhere near that much time. For these folks, there has to be a faster way.

The Rules of Court are silent on this. So is the Code. No treatise or appellate handbook – at least none of which I’m aware – explores this subject or tells the practitioner how to get timely review when timely means a matter of hours, not months.

Hence this essay, the theme of which is advance preparation. In litigation that’s as time-sensitive as denial of care, if the trial judge rules against you, bangs her gavel, and walks out before you start to prepare for the appeal, it’s too late. You have too much work to do to facilitate a quick appellate adjudication. Here’s a checklist of what you need to do, along with an explanation of why each step is necessary.

Planning for the circuit-court hearing
In addition to the preparation you would normally expect for a circuit-court hearing – marshaling evidence, preparing witnesses and exhibits, legal research, etc. – you have some additional tasks:

Seek injunctive relief in your pleadings. This is because Code §8.01-626 allows you to file an immediate petition for review of the grant or denial of an injunction – even a temporary one. If you don’t request injunctive relief, you have to wait for a final order in the case before appealing, and that can take many moons.

Prepare two orders. One of these will be the “good” order, granting you the relief you want. (If the judge enters that one, relax and hope that the Bad Guy hasn’t read this essay.) The other is the “bad” order, in case things go wrong and you have to appeal. Don’t leave it to your opponent to prepare it. He may arrive for the hearing without an order, expecting the judge to tell him, “Mr. Johnson, you prepare the order.” Guess how long he’ll take to draft it? You should be proactive and draft it yourself. Bring four copies; you’ll need that many, as I explain below.

Prepare a notice of appeal and bring four copies of that to the hearing, too. Yes, I really do mean that you should bring a notice of appeal to the circuit-court hearing, even before the court decides how to rule. One of the basic requirements for appellate jurisdiction is that you must file a notice of appeal in the trial court. If you want a lightning appeal, you have to trigger appellate jurisdiction immediately. By the way, bring more than four copies if you have more than one adversary in the case. See Rule 5:9 for the required contents of the notice, but the “guts” can be as simple as this: “Jane Jones notes her appeal to the Supreme Court of Virginia of this Court’s October 15, 2018 order [granting/denying] an injunction. A transcript of the hearing has been ordered and will be filed.”

Call the circuit court’s clerk of court before the hearing and explain your situation. If you assume that the courtroom clerk will be at your beck and call for anything you need done, think again. (In fact, you probably should rethink how you view courtroom clerks.) Tell the clerk of court what’s involved, and that if there’s an adverse ruling, you’ll need to file an emergency appeal. That means you’ll want to get a certified copy of the order right after the judge signs it, and you’ll want to get a datestamped copy of the notice of appeal at the same time. If you’re pleasant, polite, and earnest, most clerks will make arrangements to help you, especially in a life-or-death situation. This phone call should take place as early as possible – ideally before the day of the hearing, if you can do that.

Call the Supreme Court Clerk and do the same thing. This is an extremely important step, because letting the appellate court know that there may be an emergency petition on its way can make your job much easier. The Clerk’s Office processes a lot of paper each day, and you don’t want your filing to become buried among other papers. You may be able to arrange for a means of filing after hours, should that be necessary. The telephone number is (804) 786-2251. Ask to speak with the Clerk or the Chief Deputy Clerk, either of whom will have the ability to arrange for your emergency filing.

Scan copies of all of the pleadings and other documents to a PDF. This will facilitate the SCV Clerk’s distribution of your appeal to the justices. You won’t be able to include the order beforehand, of course, but make sure everything else is in there. You can scan the order after the judge enters it, along with the notice of appeal after the clerk datestamps it.

Contact a reputable court reporter and explain what’s going to happen. You’re going to need a super-expedited transcript, so you can file one with the trial court and send an e-transcript or PDF to the Supreme Court. If you make arrangements in advance, and the reporter is set up for a fast turnaround, you might be able to get a transcript in a matter of hours. Just make sure the reporter knows what you need, specifically including something in an electronic version.

If you can, prepare a petition for review now. If you’re hired the day of the hearing, you may not have time to do this. If you have more time than that, at least prepare a petition that lays out the facts and the procedural posture, and explains that refusal of the petition will foreseeably lead to the death of a person. I recommend that you title it, “Emergency Petition for Review.” You have to include legal argument on the merits of the case, too – just saying that someone will die if the court doesn’t act won’t suffice. See Rule 5:17A for requirements for the petition.

Prepare a motion asking the Supreme Court to stay the circuit court’s order pending review. If the trial judge stays her order to allow you to appeal, this will be wasted effort. But if she refuses to stay it, this can literally be a lifesaver.

At the circuit-court hearing
We’ll assume that at the conclusion of the hearing, the learned judge has ruled against you. Here’s how to act.

Before the hearing begins, speak with the courtroom clerk. Be very polite, because you’re going to need his help. See if his boss, the clerk of the circuit court, has explained to him what your situation is. Then go over what you’ll need to do if the judge rules against you.

Don’t panic, and don’t lash out at the ruling or the judge. The former behavior impairs good judgment, while the latter might earn you a trip to lockup that will delay your appeal, among other disadvantages. Besides, you’ll want the judge to know that, given the importance of the issues, you’ll need to file an emergency appeal. She may look more favorably upon your request for an accommodation or two if you act in a professional way.

Ask the judge to stay her ruling while you file a petition for review. You should promise that you will file within, say 48 hours, though you should obviously do so sooner if you can. That will convey to her that preserving the status quo – that is, ensuring that the object of the litigation is still alive long enough for the Supreme Court to consider the matter – will be minimally intrusive. If the judge agrees to do that, and will order hospital care in the meantime, you will have won an important battle. If she refuses, you’ll ask the justices to stay it.

When the judge rules against you, hand up the “bad” order. Mention that you’ll need to get a certified copy of it after she enters it.

Get at least four copies of the “bad” order after the hearing. The original order will go into the trial court’s file. You want two more – one for your file and one to give to the Supreme Court Clerk along with your petition for review. The other one you’ll grudgingly give to the Bad Guy.

Tell the judge that you have a notice of appeal to file. Explain that you’ll want a datestamped copy to send to Richmond, so you’d like to get that copy immediately, too. You will already have arranged this with the circuit-court clerk, so the courtroom clerk probably knows what to expect. You’ll hand one copy to your adversary – that one doesn’t have to be datestamped – and give the original to the courtroom clerk to stamp as filed. If you’ve followed my advice and have been polite and respectful, the courtroom clerk may be willing to say, “I’ll make the copies and be back in a few minutes.”

How to proceed in the Supreme CourtContact the SCV Clerk as soon as you’re sure you’re going to appeal. You’ve already apprised the Clerk or Chief Deputy in advance, so he’ll know what to expect. Tell him that the judge has ruled against you, that you have a datestamped notice and a PDF copy of the record, and you’ve ordered a super-expedited transcript. You should arrange then for how to transmit the appeal documents to Richmond. Now would be a good time to ensure that the Clerk or Deputy Clerk has your cell phone number.

Checklist for what to submit: (1) the datestamped copy of the notice of appeal; (2) the certified copy of the judge’s order; (3) copies of the documents in the record in a PDF; (4) your petition for review; (5) the motion to stay, if the trial judge has refused to do so, and (6) the $50 filing fee for an appeal. It will make the SCV Clerk’s job much easier if you also simultaneously send all of these documents in electronic format. That’s because the Clerk needs to forward everything to the justice or justices who will decide what to do with your petition. Anything you can do to make the SCV Clerk’s job easier, you should do. Please note that this process is not e-filing. You can’t e-file a petition for review or petition for appeal in the Supreme Court. You’re supplementing your paper filing by providing electronic copies of everything. Even the datestamped notice of appeal is technically a courtesy copy, but you want to avoid a delay while the SCV Clerk confirms filing below.

Serve your opponent electronically. This is one of those situations where snail mail, or even FedEx, won’t do. You can mail a copy the next day, but if you’re zapping it to the Clerk, do the same for your opponent.

Know how to handle the filing fee. The SCV does not accept credit cards, so you’ll have to have a check ready for the $50 filing fee. Ideally, you’ll submit that along with your other materials. If you’re filing after hours, make arrangements to pay the fee the next morning. Rule 5:17A allows you to pay the fee up to five days after you file in a situation like this.

Leave it in the Clerk’s hands. At this point, you’ve done everything you can to expedite consideration of your appeal. The Clerk is a thorough professional and will do what’s necessary to get your petition into the hands of the Robes for a ruling.

Stay in touch with your client. As if you didn’t have enough to do in this process, RPC 1.4 demands that you keep your client “reasonably informed about the status of a matter.” Your client foreseeably will be highly emotionally invested in the case and the process, so from time to time, send word, even if it’s only by e-mail, of what’s happening. Adding a copy of your filings wouldn’t hurt.

Know how to notify the hospital if you get relief. This includes relief on the merits – an outright reversal of the circuit court – or the grant of a stay by the Supreme Court, directing that the hospital do what it can to keep the patient alive while the justices consider the petition. Figure out who the right person is to receive a copy of the SCV’s order. Don’t assume that just because the SCV Clerk has sent copies of the ruling to you and your adversary, that adversary will promptly notify hospital staff. That will probably happen, but don’t take chances.

* * *

I realize that all this is complex. It’s a lot of work to take on during a stressful time. But this is the only available path to truly expedited review, where hours count. If you’re a solo practitioner and figure you won’t have time to do these things, that doesn’t mean it’s safe to skip them; in that case, associate another attorney to help you.

Lest you perceive that I just made all this up with my industrial-strength imagination, I offer my deep thanks to Trish Harrington, the current SCV Clerk, and Doug Robelen, the current Chief Deputy who will take over as Clerk when Trish retires early next year. They were very generous with their time, advice, and suggestions on how best to facilitate this extraordinary filing.

One final point: If you’d like to learn more about denial-of-care cases and related matters, here’s a link to the registration page for the program. It’s next Monday and Tuesday, October 22/23, here in Virginia Beach. All net proceeds from registration fees will, I’m told, benefit charity.